Patrick Edem Archibong & Anor V. Elder David Okon & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Honourable Justice Obojor A. Ogar of the High Court, Cross River State Calabar given on 2nd day of November, 2011.

The Appellants herein as Applicants in Court below filed a Motion on Notice against the 1st and the now deceased 2nd Respondent on 9th December, 2010 praying the Court for:

“1 . An order of committal of the Respondents to prison for having disobeyed the Judgment/order of the Court of Appeal in Suit No. CA/C/42/2003 made on 7th June, 2005 restraining the Respondents from further acts of trespass contrary to the consent of the Applicants.

2. Such further or other order as this Honourable Court may deem fit to make in the circumstance.

Each of the Respondents filed Preliminary Objection to the Applicants/Appellants’ Motion to the effect.

1. That the Learned trial Court lacks jurisdiction to entertain the Application to commit Respondent for contempt because the provision of Order lX Rule 13 of the Judgment (Enforcement) Rules Cap. S6 LFN 1990 has not been complied with.

?2. The Application filed on 9/12/2010 is an

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abuse of Court process and incompetent.

Written addresses were filed and exchanged. On 2/11/2011, the Learned trial Judge delivered his Ruling and held sundrily as follows:

First at page 42 of the Records that:

“lt is clear that the Respondents in this application are not Respondents in the Judgment order sought to be enforced. I have carefully studied the Affidavit in support of this application. It is not stated anywhere, the connection between the Respondents herein and the Respondents in the Judgment order sought to be enforced. It is not shown that they are either agents, servants or workmen of the Respondents therein. It is not shown that they are privy to the case in any way”

Furthermore at page 43, that:

“This brings us to the more serious conditions, namely the service of the order indorsed with a notice in Form 48 and the notice in Form 49. The applicants assert in Paragraph 11 of their supporting Affidavit that the Respondents have been served with Forms 48 and 49. Beyond this assertion there is no proof of either the issuance or service of the said Forms 48 and 49 on the Respondents in the Affidavit. Such proof can only be

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